0521643724 cambridge university press roman law in european history may 1999

This page intentionally left blank ROMAN LAW IN EUROPEAN HISTORY This is a short and succinct summary of the unique position of Roman law in European culture by a leading legal historian Peter Stein’s masterly study assesses the impact of Roman law in the ancient world and its continued unifying influence throughout medieval and modern Europe Roman Law in European History is unparalleled in range, lucidity and authority, and should prove of enormous utility for teachers and students (at all levels) of legal history, comparative law and European Studies Award-winning on its appearance in German translation, this English rendition of a magisterial work of interpretive synthesis is an invaluable contribution to the understanding of perhaps the most important European legal tradition of all P   S    is Emeritus Regius Professor of Civil Law in the University of Cambridge His many publications include Regulae iuris: From Juristic Rules to Legal Maxims (), Legal Evolution () and Legal Institutions () ROMAN LAW IN EUROPEAN HISTORY PETER S TEIN           The Pitt Building, Trumpington Street, Cambridge, United Kingdom    The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © English version Cambridge University Press 2004 First published in printed format 1999 ISBN 0-511-03674-4 eBook (Adobe Reader) ISBN 0-521-64372-4 hardback ISBN 0-521-64379-1 paperback Originally published in German as Römisches Recht und Europa by Fischer Taschenbuch Verlag GmbH 1996 and © Fischer Taschenbuch Verlag GmbH, Frankfurt am Main First published in English by Cambridge University Press 1999 as Roman Law in European History English version © Cambridge University Press 1999 Contents page vii viii List of abbreviations Chronology  Introduction   Roman law in antiquity              The law of the Twelve Tables Legal development by interpretation The praetor and the control of remedies The ius gentium and the advent of jurists The empire and the law The jurists in the classical period The ordering of the law The culmination of classical jurisprudence The division of the empire Post-classical law and procedure The end of the western empire Justinian and the Corpus iuris  The revival of Justinian’s law                          Roman law and Germanic law in the West Church and empire The rediscovery of the Digest The civil law glossators Civil law and canon law The attraction of the Bologna studium The new learning outside Italy Applied civil law: legal procedure Applied civil law: legislative power Civil law and custom Civil law and local laws in the thirteenth century The School of Orleans v             vi Contents  Roman law and the nation state             The Commentators The impact of humanism Humanism and the civil law The civil law becomes a science The ordering of the customary law The Bartolist reaction The Reception of Roman law The Reception in Germany Court practice as a source of law Civil law and natural law Civil law and international law Theory and practice in the Netherlands  Roman law and codification          Roman law and national laws The mature natural law The codification movement Early codifications in Germany and Austria Pothier and the French Civil Code The German historical school Pandect-science and the German Civil Code Nineteenth-century legal science outside Germany Roman law in the twentieth century Index                         Abbreviations C Character C.Th D Inst TvR ZSS (RA) Code of Justinian P Stein, The Character and Influence of the Roman civil law: historical essays, London  Theodosian Code Digest of Justinian Institutes of Justinian Tijdschrift voor Rechtsgeschiedenis Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) vii Chronology         c        –  c  c  – –  – –  –   – –   Foundation of Rome Constitution of the Roman republic Twelve Tables enacted Establishment of praetorship Assassination of Julius Caesar Death of Augustus Institutes of Gaius Constitutio Antoniniana Conversion of Constantine to Christianity Division of the empire into east and west Theodosian Code End of western empire Visigothic Roman Law Reign of Justinian Coronation of Charlemagne Decretum of Gratian Glossa ordinaria of Accursius Siete partidas Bartolus Imperial Court established H Donellus A Vinnius De iure belli ac pacis of Grotius G W Leibniz De officio hominis et civis of Pufendorf Les lois civiles dans leur ordre naturel of Domat R J Pothier F K von Savigny Prussian Allgemeines Landrecht French Code civil viii Nineteenth-century legal science outside Germany  consult Its influence on the content of the German Civil Code (BGB) of  was immense The form of the BGB does not follow the order of the Institutes but is influenced by other earlier orders, in particular the Christian geometric systems, going back to Pufendorf and Domat, which moved from the general to the particular First there is a General Part setting out rules common to all kinds of legal transaction and including the part of the law of persons dealing with legal capacity Emphasis is put on the notion of Rechtsgeschäft, which is essentially the negotium of Althusius, that is, any expression of the will by which a person intends to produce a change in his legal position Then follow four books devoted respectively to Obligations, Things, Family law and Succession Although the order of treatment is not that of the Institutes, the categories out of which it is constructed and many of the substantive rules are recognisably Roman The developments just described made German legal science the dominant force in European legal thinking True, the stock nineteenthcentury ideal of a civil code, copied by nations codifying their law, was the French Code civil, the model for the Dutch, Belgian, Italian and Spanish codes But when it came to legal science, in the sense of the interpretation of the law by jurists, German scholarship reigned supreme Students flocked to the great German law faculties in the way they had gone to Italy in the twelfth century, France in the sixteenth century and the Netherlands in the seventeenth This was true even of some common lawyers from England     -              For much of the nineteenth century, legal science in France was dominated by the ‘exegetical school’, which sought to make a complete break between the text of the code, as it was enacted, and the sources from which it was derived Its members considered the words of the text to be clear and comprehensive and aimed above all for certainty in their interpretation In the second half of the century the exegetical school came to be influenced by Pandectist ideas of general legal concepts In Napoleon’s time the Code civil had been applied to the German Rhineland and remained in force there throughout the nineteenth century German writers wrote treatises on it, some of which were translated into French In the first half of the nineteenth century Italian scholars were much influenced by the French exegetical school After the publication of the  Roman law and codification Italian Civil Code in , which immediately preceded the unification of the country, Italian scholarship took Pandect-science as its model Works such as Windscheid’s Pandektenrecht were translated into Italian by the leading scholars, and leading German Romanists, such as Jhering, were fêted on visits to Italy In England the nineteenth-century debate among those who favoured legislation as a means of reform and those opposed to it was carried on largely in terms of Roman law This is because the subject figured prominently in the reform of English legal education in the middle of the nineteenth century Oxford and Cambridge had kept the torch of Roman law flickering but the Inns of Court in London had ceased to be active as teaching institutions Teaching of English law had been introduced in the ancient universities only in the eighteenth century, and produced Blackstone’s encyclopedic Commentaries on the Laws of England, based on the Institutional scheme It was not, however, until the nineteenth century that legal education in anything resembling the continental understanding of the term really began in England University College London, whose foundation owed much to the influence of Jeremy Bentham, established chairs both of English common law and of jurisprudence in the sense of legal theory John Austin, a disciple of Bentham, was appointed to the latter chair in  and immediately went to Bonn to prepare himself Austin’s general theory of law was taken from Bentham but his analysis of legal concepts came from the German Romanists He sought systematic structure and rigorous analysis of general legal concepts and found them in such works as Savigny’s treatise on possession (which he pronounced ‘of all books upon law, the most consummate and masterly’) and Thibaut’s System of Pandect law The contrast between such works and those of English law was striking ‘Turning from the study of the English to the study of the Roman law, you escape from the empire of chaos and darkness to a world which seems by comparison, the region of order and light.’ In  Nathaniel Lindley (later Lord Lindley) published a translation of the general part of Thibaut’s work under the title Introduction to the Study of Jurisprudence An enthusiastic publicist for Roman law in the Pandectist sense was Henry Sumner Maine, who had been Regius Professor of Civil Law at Cambridge In  in an essay bemoaning ‘the immensity of the ignorance to which we are condemned by ignorance of Roman law’, he illustrated the value of a training in Roman law in providing a set of categories and instilling a particular mode of reasoning They had Nineteenth-century legal science outside Germany  permeated the discourse of moral philosophy since the seventeenth century and had dominated international law and relations So Roman law ‘is fast becoming the lingua franca of universal jurisprudence’ In  an anonymous contributor to the Law Magazine wrote of Roman law: it is obvious that its definitions and classifications, its mode of thought and the internal connections of its parts are for us incomparably more important than its minuter details The enduring merit of the Roman law is that it is the work of a people who seem to have been raised up for that particular end at a time when the vocation of races appear to have been more marked and separate than they are now We can therefore no more dispense with the Romans to teach us law than we can with the Greeks to teach us art (Law Magazine NS,  (), –) In several areas the influence of German legal science seeped into English case-law In the eighteenth century, under the influence of such judges as Lord Mansfield, there had been a tendency to seek the general principles of jurisprudence in French works such as those of Domat and Pothier, particularly the latter’s treatise on Obligations In the nineteenth century, the general principles were sought rather in German Pandectscience One problem was the nature of the personality of corporations, such as joint-stock companies In the middle of the century the most popular theory among English lawyers was that of Savigny Only human beings had legal capacity, so that groups of people could only have legal personality by fiction Austin introduced into English usage the term ‘legal person’, a translation of Savigny’s juristische Person According to this theory, companies were quite distinct from their members Towards the end of the century Maitland pointed out that in Germany itself, the Fiction theory had given way to the Realist theory, based on the idea that a corporate body was an organism with a group-will, so that the law must take account of the character of those running the company The Fiction theory was followed by the House of Lords in the case of Salomon ([] A.C.), whereas the Realist theory found favour in the Daimler case ([]  A.C.) Another problem concerned the nature of possession and Savigny’s insistence on a particular mental and physical relationship between possessor and thing possessed was frequently cited as having a general application to all developed legal systems Likewise Savigny’s view that contract law was based on the will theory and that all contracts required subjective consensus, in the sense of an actual meeting of minds, was  Roman law and codification generally accepted, even though the common law had frequently recognised a contract if the parties had behaved in such a way as to arouse reasonable expectations in each other Pandectist ideas were taken to be notions of general jurisprudence and therefore applicable to any developed legal system In the second half of the nineteenth century, the Pandectist influence in England was countered by a theory, also based on Roman law, but viewed from a different perspective In place of Savigny of the Pandects, the model was now Savigny, the founder of the historical school The English version of the theory that legal development occurs by itself, without the need for legislation, was set out in Sir Henry Maine’s treatise Ancient Law, whose subtitle was ‘Its connection with the early history of society and its relation to modern ideas’ Just as Savigny had based his account of legal evolution on the laws of the ‘nobler nations’, so Maine confined himself to ‘progressive societies’ (a notion he derived from the French writer Charles Comte) They turned out to be those of the Romans and the English Roman law provided Maine with a model of a legal system that had developed over a millennium without an obvious break and he structured his account of ancient law around the development of Roman legal institutions, with occasional references to those of other Indo-European societies In Rome a monarchy was replaced by a republic, dominated by patricians, whose interpretation of the ius civile provoked the plebeians to demand the enactment of the Twelve Tables Maine generalises the Roman experience, holding that in the earliest period of society, divinely inspired kings hand down isolated judgments, which he calls ‘themistes’ Subsequently the kings lose their sacred power and are replaced by small groups of aristocrats They have a monopoly of knowledge of the traditional customs but they abuse their power of interpretation and produce popular agitations for the recording of the customs in what Maine calls ‘ancient codes’ So far the scheme is recognisably Roman but is not readily discernible in other societies and particularly has no parallels in England In subsequent periods of legal change, Maine was more fortunate Certain mechanisms of legal change are found in both Roman and English law These include the adoption of fictions to bring new situations within established categories and the introduction of equity to modify the rigidity of the traditional law, through the control of remedies by the Roman praetor and the English chancellor Law-making by legislation as a mechanism of legal change tends to appear late Nineteenth-century legal science outside Germany  The most influential aspect of Maine’s studies of Roman law is the impetus they gave to the study of society itself Early society, he showed, begins not with the individual but with the family group The primitive family is dominated by the patriarch The members are subject to the power of the paterfamilias This form of the primitive family explains the early history of wills, property, contract and delict Roman law, as the law of a progressive society, was distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place ‘The individual is steadily substituted for the family as the unit of which the civil laws take account we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals.’ The status of the slave, the status of the female under tutelage and the status of the son in power all disappeared, to be replaced by the free agreement of individuals Thus, concluded Maine, ‘the movement of progressive societies has hitherto been a movement from Status to Contract’ (ch ) Austin had generalised the particular institutions of Roman law and now Maine generalised the historical evolution of those institutions Maine himself claimed that his method was based on that of the natural sciences At the beginning of Ancient Law he says that the rudimentary ideas of law in ancient societies are ‘to the jurist what the primary crusts of the earth are to the geologist’ Charles Darwin’s Origin of Species appeared at almost the same moment as Maine’s Ancient Law and readers saw the similarity Just as animals gradually evolve, so, it seemed, societies The evidence of the changes in their structure is to be found in the changes in their law Roman law, with its unique record of unbroken change over a thousand years, evidenced throughout by written documents, was seen as the key to the discovery of the evolution of progressive societies Although many of his particular propositions were later controverted, and several later scholars made their name disproving them, Maine’s general approach had considerable influence on the early study of anthropology and sociology For example, in Ferdinand Tonnies’ famous work Gemeinschaft und Gesellschaft (), the two contrasting types of social groups, community and society, are based on Maine’s distinction between societies based on status and those based on contract By showing the connection between ancient Roman legal institutions and the circumstances of early Roman society, Maine established the link between law and society in a manner that was fruitful for the development of the social sciences  Roman law and codification             With the coming into force of the German Civil Code in , Roman law ceased to be applicable, even in a modernised form, in any significant European state The only exception is the Republic of San Marino, which rejected the idea of a civil code and still applies the uncodified ius commune In codified legal systems the Roman civil law no longer has any direct application in the courts, although in uncodified legal systems its texts are occasionally cited as exemplifying general legal principles Thus in an English case in , involving the rights of two parties whose oil had been mixed in the hold of an oil-tanker, the judge considered certain old English cases, which suggested that where the mixing had been done wrongfully by one of the parties, the other was entitled to the whole of the mixed oil Having decided that he was not bound by precedent to follow any of them, he stated that he was free to adopt ‘the rule which justice required’ and proceeded to apply the Roman rule of confusio The latter would have divided the oil between the parties, according to their respective shares (which could be precisely determined), and allowed a separate claim for damages for any loss caused by wrongdoing (Inst ..) The virtual cessation of references to Roman law in practice had no immediate effect on its prominent position in the curriculum of European faculties of law, where it was presented as the foundation on which the institutions of modern codified civil law were based Freed from the need to assist the development of the law in force, however, the professors of Roman law made their subject much more historical than it had been The aim was now to reconstruct the state of classical Roman law at its peak in the second and early third centuries Romanists concentrated on the study of Justinian’s texts rather than on the interpretations of its various commentators Invaluable tools were provided by the German scholar Otto Lenel, who reconstructed the text of the praetor’s edict and also provided a Palingenesia iuris civilis, which rearranged all the fragments of Justinian’s Digest as far as possible in the order in which they appeared in the classical works from which they were extracted Textual study concentrated on the purification of those texts by the identification of interpolations, attributable either to post-classical editors or to the compilers of the Digest The sixteenth-century humanists had begun this work, which was now taken up with renewed vigour, Roman law in the twentieth century  so that the period between the two world wars was dominated by the ‘hunt for interpolations’ The textual changes were said to be indicated either formally, by the use of particular Latin expressions, which were stigmatised as Byzantine and so non-classical, or substantially, by the fact that the text seemed to state a doctrine which could be demonstrated to be unclassical The trouble was that each of these criteria begged the question We not know with any certainty the kind of Latin written in the third century by, say, Ulpian, who was actually not Roman in origin but came from Tyre in the eastern Mediterranean And we cannot know what was the classical law on most topics except through the very texts which are under investigation In any case classical law was not a homogeneous whole but was marked by disagreements among the jurists, hints of which survived in the texts, notwithstanding the efforts of the Digest compilers to eliminate them The excesses of interpolation-hunting made the study of Roman law seem to many non-specialist jurists an esoteric sport quite irrelevant to modern law As a result, the pendulum of textual criticism in the second half of the twentieth century has swung to the opposite extreme It is now recognised that many of the signs of alteration in the Digest texts are due to the compilers’ need to abbreviate them rather than to their desire to make changes of substance In most cases, therefore, we should assume that in their present state the texts record what is substantially classical doctrine All the main European countries have contributed to the twentiethcentury literature of Roman law, but the most intensive scholarship has been concentrated in Germany and Italy The law faculties of the Italian universities have over a hundred chairs dedicated to the subject When, after the collapse of communism, the countries of Eastern Europe were concerned to re-establish their credentials as participants in the tradition of Western legal culture, they revived the study of Roman law and gave it more prominence in the curricula of law faculties Whereas in the nineteenth century there was no sharp division between scholars of Roman law and scholars of modern civil law, the twentieth century has seen a widening gap between the two In general, reform of the principal European civil codes has proceeded piecemeal, although two countries, Italy and the Netherlands, have introduced complete new codes, Italy in  and the Netherlands in  (the latter still lacks the final part) In both cases commentators have noted some softening of the terminological rigour which characterised the nineteenth-century codes  Roman law and codification In the middle of the century there was a movement, based in Germany, to locate the study of Roman law in the wider context of ‘ancient legal history’ Attempts were made to relate Roman law to the growing information about other laws of antiquity, in particular the various Greek laws and Mesopotamian law The study of the latter is based on the large number of tablets recording legal transactions that have been discovered by archaeologists Such evidence is valuable as showing the law in action, but it contributes little in the way of legal argument For none of these other legal systems of antiquity seems to have developed a class of specialist jurists, comparable to the Roman jurists It is the fact that we have a record of the debates of the classical jurists that has given Roman law the rich texture which makes its study valuable even today The European movement and the institutions it has produced have resulted, during the last two decades, in a revival of interest in Justinian’s law, as the law of an ancient unified Europe, and even more in the medieval ius commune, which transcended national boundaries and was everywhere expounded in the same way and in the same language The institutions of European Community law are frequently described as forming the beginning of a new ius commune The difference, which is sometimes overlooked, is that the medieval ius commune was adopted throughout Europe voluntarily, through the recognition of its superiority to any alternative, whereas the new ius commune, such as, for example, the rules of product liability, is imposed from above in the interest of uniformity Nevertheless the idea that European Community law is in some sense not a new thing but a renewal of a cultural legal unity, which once covered the whole continent, has sparked interest in what is described as ‘the civilian tradition’ This study traces the development of legal doctrines from Justinian’s law up to the modern codes and brings out the contributions from scholars of different countries to that development The result of such studies has brought into relief the extent to which legal notions worked out by the Romans have usually survived, in a recognisable form, all the changes imposed on them by those seeking to adapt them for current needs   In general, K Zweigert and H Kötz, An Introduction to Comparative Law, trans T Weir, Oxford ; H Coing, Europäisches Privatrecht, :  bis , Munich ; A Gambaro and R Sacco, Sistemi giuridici comparati, Turin  Further reading  . N Horn, ‘Römisches Recht als gemeineuropäisches Recht bei Arthur Duck’, in Studien zur europäischen Rechtsgeschichte, ed W Wilhelm, Frankfurt , ; K Luig, ‘The institutes of national law in the seventeenth and eighteenth centuries’, Juridical Review (), ; G Wesener, Einflüsse und Geltung des römischgemeinen Rechts in den altösterreichischen Ländern in der Neuzeit ( bis  Jahrhundert), Vienna ; J Hilaire, Introduction historique au droit commercial, Paris  . K Luig, ‘Die Würzeln des aufgeklärten Naturrechts bei Leibniz’, in Naturrecht-Spataufklärung-Revolution, ed O Dann and D Klippel, Hamburg , ; P Stein, ‘Civil law maxims in moral philosophy’, Tulane Law Review  (), ; K Luig, ‘Wissenschaft und Kodifikation des Privatrechts im Zeitalter der Aufklärung in der Sicht von Christian Thomasius’, Europäisches Rechtsdenken in Geschichte und Gegenwart: Festschrift H Coing, Munich , ; P Cappellini, Systema iuris : genesi del sistema e nascita della scienza delle pandette, Milan ; G Tarello, ‘Sistemazione e ideologia nelle Lois civiles di Jean Domat’, Materiali per una storia della cultura giuridica,  (),  . B Bauer and H Schlosser, W X A Frhr von Kreittmayr, –, Munich ; H E Strakosch, State Absolutism and the rule of Law: The Struggle for the Codification of the Civil Law in Austria, –, Sydney ; A Schwennicke, Die Entstehung der Einleitung des Preussischen Allgemeinen Landrechts von , Frankfurt ; G Dilcher, ‘Die janusköpfige Kodifikation- Das preussische ALR ’, Zeitschrift für Europäisches Privatrecht (),  . A J Arnaud, Les origines doctrinales du code civil franỗais, Paris . 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theory and the reform of legal education in mid-nineteenth-century England’, in L’Educazione Giuridica , ed A Giuliani and N Picarda, Perugia ,  (=Character, ); M Graziadei, ‘Changing images of the law in XIX-century English thought (the continental impulse)’, in The Reception of Continental Ideas in the Common Law World –, ed M Reimann, Berlin ; The Victorian Achievement of Sir Henry Maine A Centennial Reappraisal, ed A Diamond, Cambridge   Roman law and codification . Indian Oil Corp Ltd v Greenstone Shipping S.A []  All E.R , on which P Stein, Cambridge Law Journal  (), ; R Knütel, ‘Rechtseinheit und Römisches Recht’, Zeitschrift für Europäisches Privatrecht (), ; R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition, Cape Town  Index Accursius, –, –, 6, 6,  Accursius, Francis, 6 actions, , , , , , 6, , , ,  advocates, 6 Afflictis, M de,  agreements, – Agustín, Antonio,  Aimericus,  Alaric, –,  Albericus, 6 Alciatus,  Alcuin,  Alexander III, pope,  Alfonso X ‘the Wise’, 6–6 Althusius, J., ,  Anglo-Saxons,  appeals,  Aquinas, Thomas, 6,  Ashburnham Law-Book,  Augustus, emperor, , 6 Austin, John, , ,  Austria, , – Authenticum, , 6 Azo, , 6, 6,  Baldus de Ubaldis, –, , –, 6 Balkans, 6 Bartolus, 6, –, , , –6 Basilica, the,  Bassianus, Johannes, , , 6 Beaumanoir, Philippe de, 66 Beauvaisis, 66 Beckmann, Nicholaus von,  Bede,  Beirut,  Bellapertica, Petrus de, 6– Bluhme, F.,  Bologna, –, –, 6, , 6, 6, , 6 Bourges, , ,  Bracton, 6, 6, 66, ,  Breviary of Alaric, – brocards, ,  Bronchorst, E., ,  Budaeus (Guillaume Budé), 6 Bugnyon, P., ,  Bulgarus, –, –, 6, 6 Buno, Johannes,  Burgundians, , , , , ,  Byzantium, , , , ,  Cambridge University,  canon law, , , , , –, , , 6, 6, 6, 66, 6, , ,  civil law and, –, , , ,  Canterbury, , 6 Caracalla, emperor Antoninus, –,  cases, , ,  Castile, 6, 6 Catalonia, 6 Catholic Church, , , , , –, , , ,  courts, , , 6,  and Roman empire, – see also canon law Charlemagne, – children, 6, –, –,  Christianity, –, , 66, 6, , , , – see also canon law; Catholic Church Cicero, , 6, ,  Cinus, 6,  citizens, , , , , ,  civil law, , , , , , , , , , , ,  and canon law, –, , ,  and customary law, 6–, 6– glossators of, – and humanism, 6–, –6 and international law, 6– and local laws, 6– and natural law, –6, , – as a science, – see also Corpus iuris civilis Cocceji, Samuel von,  Code, Justinian, , –, , , , , 6, , , , 6, , , 6, 6, ,    Codex Gregorianus,  Codex Hermogenianus,  Codex secundus,  Codex Theresianus (66), – codification, –6, –, , , ,  cognitio procedure,  Collectio Britannica,  commentaries, , , 6 Commentators, , 6, 6 common law, 6, 6, –,  Connanus, , ,  Constantine, emperor, , , , , 6, –6 Constantinople, , 6 see also Byzantium Constitutio Antoniniana, –, 6 constitutions, ,  see also ‘Novels’ Constitutions of Melfi, 6 contracts, , , , , 66, , , –6,  Coquille, Guy (–6),  corporate body,  Corpus iuris civilis, , –, , , 6, 6, 6, , –, , , , ,  and science, – courts, , , , 6, 6, –,  Covarruvius, D.,  creditors, 6, ,  criminal law, , , 6 Cujacius (Cujas), –, ,  Cumis, Guido de, 6 customary law, , , 6, , , 6–, 6, 66, , 6–, , ,  codification of, – Dante, 6, 6 Decretum, , ,  debtors, 6, , , ,  Decius, Filippus,  delicts, , , ,  Denmark, 66– Digest, –, , 6, , , , , , 6, 6, 6, , , 6, , , 6, , , ,  Florentine text of, 6,  rediscovery of, – disputation, ,  Domat, Jean, –, , ,  Donation of Constantine, –6 Donellus, Hugo (–), –, , 6, ,  Duarenus,  Duck, Arthur,  Dumoulin, Charles see Molinaeus Durandus, G., –,  Index duress, ,  duties, – eastern empire, –, , , , –6,  Ecloga,  edict, praetorian, ,  Edict of Theodoric, ,  Edward I, King of England, 6 Egypt, 6 emancipation, – emperor, legislative power of, –6, –,  England, , 6, 6, 6, 6, 6, –, 6, , –,  Enlightenment,  Epitome Gai, –,  Epitome Juliani, , ,  equity, , , 6 ethics, 6 Euric’s law,  European Community,  Exceptiones Petri,  Expositio,  F manuscript, 6, ,  family, –6, –, , , , , ,  Fastolf, Thomas,  father, power of, 6,  feudal law, 6–, , , , – Feytema, S.,  Fiction theory,  Florence,  formula, , , , ,  Four Doctors, – France, , –6, , 6–, 66, 6–, , –, , ,  codification in, –6, –, ,  customary law in, –, 6, ,  Franks, , , , , , ,  fraud, ,  Frederick II, emperor, 6– Frederick Barbarossa, emperor, , 6 Frederick the Great, King of Prussia,  Frederick William I, King of Prussia, – Friesland, , ,  Gaius,  Institutes of, ‒, –, , ,  Gaul, , , ,  Gelasius I, Pope,  general principles, –6, , , , ,  Gentili, Alberico, 6, 6–,  Germanic tribes, , –, , ,  Germany, , , 6, –, , , , –, , , ,  codification in, –, –, ,  Index customary law of, , 6, , 6,  historical school, 6– legal science in, – Gibbon, Edward, , , 6 glossators, –, , , 6, 6, , 6 Goethe, J.W., 6 Gratian, –,  Greek language, , –6, 6 Greeks, , , , , , ,  Gregory IX, pope, – Groenewegen van der Made, Simon,  Grotius, Hugo (–6), , –,  groups, ,  Gundobad, King of the Burgundians,  Hadrian, emperor, , 6 Heineccius J.G (6–),  Henry VI, emperor, 6 Henry VIII, King of England,  Hexabiblos, –6 historical school, 6–, 6 Holland, – Holy Roman empire,  homicide, Honorius III, pope, , 6 Hotman, F., ,  Huber, Ulrich, – Hugo, Gustav, 6 humanism, , –, , –6, –, , ,  individuals, , , –, ,  inheritance, ,  injury, ,  Institutes, the, –, , 6, 6, , , , , , , ,  of Gaius, ‒, –, , ,  of Justinian, , , , , 6, ,  interdict,  international diplomacy,  international law, 6–,  interpolations, , ,  interpretation, , , –,  interpretationes, , ,  Irnerius, 6–, , 6,  Irni,  Isidore, St, , 6 Italy, , , , , , –, 6, 6, 6, , , , 6, 6, , ,  Civil Code (6),  law schools,  iudex, –, 6, , , , 6,  ius commune, , , , 6, , , , , , ,  ius gentium, – Ivo, St, ,   Jefferson, Thomas, –6 Jerome, St,  Jhering, Rudolf von, –,  Jolowicz, H.F.,  judges, , , , 6,  Julian, , , 6 jurisprudence, , , 6 jurists, , , , , , ,  classical, 6– humanist, 6– as a social class,  jury, 6 Justinian I, emperor, –6, , 6, 6, 6 see also Justinian’s law Justinian’s law, –, , 6, , 6, , , , , , ,  rediscovery of, – scholastic study of, – see also Code, Justinian; Digest Koschaker, Paul,  Kreittmayr, W.X.A von,  Latin language, 6, , , , , ,  Laurentius Hispanus,  Law of Citations, ,  law of nations, , , 6,  see also natural law law reform, , ,  law students, –, 6–,  Leeuwen, Simon van, ,  legacies,  legal development, , 6,  legal procedure, , –, 66, 6, ,  legislative power, –6 Leibniz, G.W.,  Lenel, Otto,  Leo the Wise, emperor,  ‘Lex Romana Burgundionum’, , ,  ‘Lex Romana canonice compta’,  ‘Lex Romana Curiensis’,  Lex Romana Visigothorum see Breviary of Alaric Leyden, –,  Liber extra, ,  Liber pauperum, 6–, 6 Liber sextus,  Libri feudorum, 6–, ,  Lindley, Nathaniel,  Liutprand’s Edict,  Livy, , ,  Lo codi,  local law, , 6–, –, – see also customary law  Lombard law, –, , , 6, 6 Lothair, 6 magistrates, Roman, , , 6, ,  Maine, Henry Sumner, –, 6– Maitland, F.W., , ,  Mansfield, Lord,  Maria Theresa, empress,  marriage, , , , 6,  Martini, Karl Anton von,  Martinus Gosia, , , 6, 6 maxims, , , 6 Mayno, Jason de,  Melanchton, Philip,  mercantile law, 6, ,  Milan, , ,  Modestinus,  Molinaeus (Charles Dumoulin), –,  money damages, – Montesquieu, , 6,  morality, , –,  Mucius Scaevola,  municipal law,  Mynsinger, Joachim, ,  natural law, , –6, , , –,  negotium,  Netherlands, , , –, ,  new law,  New World, – non-citizens, , ,  ‘Novels’, , , , , , ,  oath helpers, , ,  oaths, ,  Obertus, 6,  obligations, –, , , , ,  opinion, the (consilium),  Oppian law,  ordo iudiciorum,  Orleans, 6, 6–, , – Ostrogoths, , ,  ownership, , 6, , , , – Oxford University, 6,  Pandect-science, –, , , 6 papal decretals, –, 6 Pape, Guy,  Papinian, , , , , – Paraphrase, the,  Paris, 6, , 6 Custom of, –,  patricians,  Paul, , , , , ,  Pavia, , –, , 6, ,  Index people, authority of, , 6, 6, –,  Pepo, –6 peregrines see non-citizens personal principle, ,  personal status, , 6, , ,  Petrus de Cadorna, 6 physical injury, , Placentinus, 6 plebeians, , ,  Politian, 6,  Pomponius,  pontiffs, , , ,  possession, law of, , –,  Pothier, Robert Joseph (6–), –,  praetors, –, , 6 precedents, ,  private law, , 6, , , , , , , , , , , , ,  Proculians,  property, , , 6, , , , , , 6, 6, , , , , , 6 Protestants, ,  Provence, ,  public law, , ,  Pufendorf, Samuel, –, ,  Ramus, Peter,  Ravanis, Jacobus de, 6– Ravenna, ,  Realist theory,  reason, 6, , 6, , , , , ,  Reichskammergericht, ,  remedies, –, , , , , 6 Rhône valley school,  rights, , ,  Ripuarian Franks,  Rivail, Aymar du,  Rogerius, –6 Roman law academic study of, – arguments for and against,  classical period, 6–,  classification of, – imperial period, –6 influence of, ,  and modern society, –, – origins of, , – provincialisation of, 6 reception of, 6– republican period, – revival of, 6– and social change, –,  see also civil law; Justinian’s law Rome, , , , , ,  Rota Romana,  Index rules, , , , , , , , , ,  Russia, 6 Sabinians, ,  Sabinus, Masurius, ,  sacral law,  sale of goods agreement, , 6,  Satan, trial of,  Savigny, F.K von (–6), 6–, , , , , , 6 Schilter, J.,  scholia,  schools of law, –6, 6–, –,  Scotland,  Sentences of Paul, ,  Sicily, 6 Siete partidas, 6–6, , 6 slaves, 6, , ,  Solon’s law, ,  Soto, Domenico,  Spain, , , , 6–6, , 6–, –, 6, , 6– Speculum judiciale, – Stephen of Tournai,  stipulatio,  Struve, G.A., – Suarez, Carl Gottlieb,  Suarez, Francisco, ,  substantive law, , , 6 successions,  Sunesen, Anders, 66– Sweden,  Switzerland,  talion,  Tertullian,  texts, , –, 6, –, – theft, , 6, ,  Theodore of Tarsus,  Theodoric the Great,  Theodosius I, emperor, – Theodosius II, emperor, , 6 Code of, , , ,   theology, , 66, 6, ,  Theophilus,  Thibaut, A.F.J., 6,  things, ,  Thomasius, Christian (6–), , ,  three-sales rule, – Torelli, L.,  Tres libri, , 6, 6 trial,  Tribonian, ,  trivium, 6 Tübingen Law-Book,  Twelve Tables, –, , ,  Ulpian, , , , , , , 6,  universities, , , 6, , , , , , , , , , ,  usufruct, , , 6,  Vacarius, 6 Valentinian III, emperor, ,  Valla, Lorenzo,  Vandals, ,  vassal–lord relationship, –, – Venice,  vindicatio,  Vinnius, Arnold, –, , 6– Visigoths, –, , –, , , , 6 Vitoria, Franciscus, –, 6 Voet, Johannes, ,  vulgar law, ,  Weber, Max,  western empire, , , –, – Church and, – Wexionius, Michael,  wills, , , , , ,  Windscheid, B., , ,  Wolff, Christian (6–), ,  written laws,  Zasius, 6– Zeiller, Franz von, – ... University Press 1999 as Roman Law in European History English version © Cambridge University Press 1999 Contents page vii viii List of abbreviations Chronology  Introduction   Roman law in. .. page intentionally left blank ROMAN LAW IN EUROPEAN HISTORY This is a short and succinct summary of the unique position of Roman law in European culture by a leading legal historian Peter Stein’s... assesses the impact of Roman law in the ancient world and its continued unifying in? ??uence throughout medieval and modern Europe Roman Law in European History is unparalleled in range, lucidity and